Opinion
H041192
09-25-2017
THE PEOPLE, Plaintiff and Respondent, v. KANAKIS FRAGIADAKIS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1368153)
STATEMENT OF THE CASE
A felony complaint charged defendant Kanakis Fragiadakis with one count of possession of child pornography (Pen. Code, § 311.11, subd. (a)). Defendant pleaded no contest to that charge. The trial court placed defendant on probation subject to various terms and conditions.
All further statutory references are to the Penal Code unless otherwise indicated.
The trial court imposed the following probation conditions pursuant to section 1203.067: a condition requiring defendant to "complete an approved sex offender management program" (§ 1203.067, subd. (b)(2)); a condition requiring defendant to "waive any privilege against self-incrimination and participate in polygraph examinations, which shall be part of the sex offender management program" (§ 1203.067, subd. (b)(3)); and a condition requiring defendant to "waive any psychotherapist-patient privilege to enable communication between the sex offender management professional and the Probation Officer" (§ 1203.067, subd. (b)(4)).
The trial court also imposed probation conditions related to socializing, pornography, and Internet usage. Probation condition No. 5 states: "The defendant may not date, socialize or form a romantic relationship with any person who has physical custody of a minor unless approved by the probation officer." Probation condition No. 19 states: "The defendant shall not enter any social networking sites, nor post any ads, either electronic or written, unless approved by the probation officer." Probation condition No. 21 states: "The defendant shall not purchase or possess any pornographic or sexually explicit material as defined by the probation officer." Probation condition No. 22 states: "The defendant shall not frequent, be employed by, or engage in any business where pornographic materials are openly exhibited." Probation condition No. 23 states: "The defendant shall not access the Internet or any other on-line service through the use of a computer, or other electronic device at any location (including place of employment) without prior approval of the probation officer. The defendant shall not possess or use any data encryption technique program." Probation condition No. 24 states: "The defendant shall not clean or delete Internet browsing activity and must keep a minimum of four weeks of history."
Defendant now appeals. On appeal, he challenges the probation conditions imposed pursuant to section 1203.067, subdivisions (b)(3) and (b)(4), and he also challenges probation condition Nos. 5, 19, 21, 22, 23, and 24. As set forth below, we will modify probation condition Nos. 5, 21, and 22, and we will affirm the probation order as modified.
DISCUSSION
The facts underlying defendant's conviction are not relevant to our disposition of the issues presented on appeal. We therefore will not summarize those facts.
I. The Probation Conditions Imposed Pursuant to Section 1203.067
Defendant urges us to strike or modify the probation conditions imposed pursuant to section 1203.067, subdivisions (b)(3) and (b)(4). He asserts that the condition requiring him to waive the privilege against self-incrimination and participate in polygraph examinations (the § 1203.067, subd. (b)(3) condition) violates the Fifth Amendment and is unconstitutionally overbroad. He asserts that the condition requiring him to waive the psychotherapist-patient privilege (the § 1203.067, subd. (b)(4) condition) violates his privacy rights and is unconstitutionally overbroad.
In People v. Garcia (2017) 2 Cal.5th 792 (Garcia), our Supreme Court rejected similar challenges to probation conditions imposed pursuant to section 1203.067, subdivisions (b)(3) and (b)(4). In Garcia, the section 1203.067, subdivision (b)(3) condition required the defendant to "waive any privilege against self-incrimination and participate in polygraph examinations, which shall be part of the sex offender management program," and the section 1203.067, subdivision (b)(4) condition required the defendant to "waive any psychotherapist-patient privilege to enable communication between the sex offender management professional and the Probation Officer." (Garcia, supra, at p. 799.)
As to the section 1203.067, subdivision (b)(3) condition (requiring waiver of any privilege against self-incrimination and participation in polygraph examinations), our Supreme Court rejected the claim that the condition violated the Fifth Amendment. (Garcia, supra, 2 Cal.5th at pp. 802-803.) The court explained that the "condition is properly read . . . to require that probationers answer all questions posed by the containment team fully and truthfully, with the knowledge that these compelled responses could not be used against them in a subsequent criminal proceeding." (Ibid.) Given this proper reading, the court determined that the condition did not violate the defendant's Fifth Amendment rights: "As this court has previously explained, the Fifth Amendment does not establish a privilege against the compelled disclosure of information; rather, it 'precludes the use of such evidence in a criminal prosecution against the person from whom it was compelled.' " (Id. at p. 807.) In order to "remove any doubt" on the Fifth Amendment issue, the court explicitly declared that "probationers have immunity against the direct and derivative use of any compelled statements elicited under the [section 1203.067,] subdivision (b)(3) condition." (Ibid.)
Our Supreme Court rejected the claim that the section 1203.067, subdivision (b)(3) condition was overbroad. (Garcia, supra, 2 Cal.5th at p. 809.) Although the defendant asserted that the condition permitted "polygraph examinations of unlimited scope," the court concluded that the scope of the polygraph examinations was "not unbounded." (Ibid.) The court explained that the condition was "expressly linked to the purposes and needs of the sex offender management program," with the scope of the polygraph examinations thus "limited to that which is reasonably necessary to promote the goals of probation." (Ibid.)
As to the section 1203.067, subdivision (b)(4) condition (requiring waiver of any psychotherapist-patient privilege), our Supreme Court found that the condition did not violate the defendant's right to privacy. (Garcia, supra, 5 Cal.5th at pp. 798-799.) The court explained that the condition required a "limited waiver of the psychotherapist-patient privilege for the purpose of enabling the treatment professional to consult with the probation officer and the polygraph examiner." (Id. at p. 799.) Because the defendant's confidential communications could "be shared only with the probation officer and the certified polygraph examiner," the court concluded that the waiver required by the condition was "quite narrow" and did not violate the defendant's federal constitutional right to privacy. (Id. at p. 810.) The court emphasized that the waiver did "not relieve the psychotherapist, probation officer, or polygraph examiner of their duty to otherwise maintain the confidentiality of this information." (Ibid.)
In addressing the claim that the section 1203.067, subdivision (b)(4) condition was overbroad, our Supreme Court noted: "The required waiver [of the psychotherapist-patient privilege] extends only so far as is reasonably necessary to enable the probation officer and polygraph examiner to understand the challenges defendant presents and to measure the effectiveness of the treatment and monitoring program." (Garcia, supra, 5 Cal.5th at p. 811.) In light of this "limited sharing of information," the court determined that the condition intruded on the psychotherapist-patient privilege "only to a limited extent" and was not overbroad. (Id. at pp. 812-813.)
Garcia resolves defendant's challenges to the probation conditions imposed pursuant to section 1203.067, subdivisions (b)(3) and (b)(4). In light of the precedent established by Garcia, we refuse defendant's request to strike or modify those conditions. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity Sales).)
Defendant asserts that Garcia does not resolve his claim that the section 1203.067, subdivision (b)(4) condition (requiring waiver of any psychotherapist-patient privilege) violates his state constitutional right to privacy. We believe that Garcia does resolve defendant's argument. Defendant contends that the section 1203.067, subdivision (b)(4) condition violates his state constitutional right to privacy because it requires waiver of the psychotherapist-patient privilege "in any circumstance," thus authorizing therapists' trial testimony regarding confidential communications and disclosure of psychological records to prosecutors. Garcia rejected defendant's expansive interpretation of the section 1203.067, subdivision (b)(4) condition. Garcia concluded that the waiver required by the section 1203.067, subdivision (b)(4) condition is "quite narrow," authorizing sharing of confidential communications "only with the probation officer and the certified polygraph examiner." (Garcia, supra, 5 Cal.5th at p. 810.) Garcia emphasized that the waiver does "not relieve the psychotherapist, probation officer, or polygraph examiner of their duty to otherwise maintain the confidentiality of this information." (Ibid.) Given that Garcia rejected the expansive interpretation of the condition that defendant's argument is premised on, defendant's claim that the condition violates his state constitutional right to privacy must fail.
II. Probation Condition No. 5
A. The Arguments
Defendant contends that probation condition No. 5 is unconstitutionally vague and overbroad. That condition states: "The defendant may not date, socialize or form a romantic relationship with any person who has physical custody of a minor unless approved by the probation officer."
Defendant contends that the condition is vague because the terms "date," "socialize," and "form a romantic relationship" are "simply too imprecise for [him] to know what is prohibited." He contends that the condition is overbroad because the prohibited conduct is "extraordinarily broad," in violation of his constitutional rights to association and privacy.
The Attorney General concedes that the word "socialize" is vague and "should be struck" from the condition. The Attorney General argues, however, that the terms "date" and "form a romantic relationship" should "not be struck" because they are neither vague nor overbroad.
As explained below, we accept the Attorney General's concession that the word "socialize" should be omitted from the condition. We also conclude that the terms "date" and "form a romantic relationship" do not render the condition unconstitutionally vague or overbroad.
B. Legal Principles and the Standard of Review
"A probation condition 'must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated,' if it is to withstand a challenge on the ground of vagueness." (In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.).) "A restriction failing this test does not give adequate notice—'fair warning'—of the conduct proscribed." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153 (E.O.).)
"A probation condition that imposes limitations on a person's constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad." (Sheena K., supra, 40 Cal.4th at p. 890.) "The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant's constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement." (E.O., supra, 188 Cal.App.4th at p. 1153.)
We apply the de novo standard of review when evaluating vagueness and overbreadth challenges to probation conditions. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)
C. We Will Modify the Condition to Omit the Word "Socialize"
The condition's prohibition on socializing is vague. The word "socialize" does not provide adequate notice of the proscribed conduct. As defendant asserts, the word "socialize" is "imprecise" and presents numerous questions regarding the prohibited conduct: "Does the term mean that [defendant] may not attend an after-work gathering with co-workers without first gaining permission from his probation officer? Does it mean he cannot share a meal with co-workers at lunch time? Can he speak with them at the water-cooler?" The inclusion of the word "socialize" thus renders the condition unconstitutionally vague. We accept the Attorney General's concession and will modify the condition to omit the word "socialize."
On the other hand, the terms "date" and "form a romantic relationship" are not unconstitutionally vague. Those terms "have a 'plain commonsense meaning, which is well settled . . . .' [Citations.]" (In re R.P. (2009) 176 Cal.App.4th 562, 566-567.) The verb "date," in this context, is commonly understood to mean to engage in activities with another person with the intent of forming a romantic relationship. A romantic relationship is commonly understood to mean a relationship in which two people have feelings of love or affection for one another. Thus, the terms "date" and "form a romantic relationship" are sufficiently precise and provide adequate notice of the proscribed conduct.
One meaning of the noun "date" is "a social engagement between two persons that often has a romantic character," and the verb "date" can mean "to make or have a date with" or "to go out on usually romantic dates." (Merriam-Webster's Collegiate Dict. (10th ed. 1993) p. 294.)
One meaning of "romantic" is "marked by expressions of love or affection." (Merriam-Webster's Collegiate Dict. (10th ed. 1993) p. 1016.)
Nor do the terms "date" and "form a romantic relationship" render the condition unconstitutionally overbroad. The condition does not completely prohibit dating and the formation of romantic relationships. Rather, the condition permits defendant to date or form a romantic relationship with any person that does not have physical custody of a child. The condition even permits defendant to date or form a romantic relationship with someone who has physical custody of a child, so long as defendant obtains approval from his probation officer. This narrow restriction on dating and romantic relationships is closely tailored to the purpose of the condition, which is to limit defendant's contact with children. The condition's restriction on dating and romantic relationships is not unconstitutionally overbroad.
In sum, we conclude that the word "socialize" must be omitted from the condition. We will modify the condition to read as follows: "The defendant may not date or form a romantic relationship with any person who has physical custody of a minor unless approved by the probation officer." III. Probation Condition Nos. 19, 21, 22, 23, and 24
A. Express Knowledge Requirements Are Unnecessary
Defendant contends that probation condition Nos. 19, 21, 22, 23, and 24 are unconstitutionally vague "because they lack explicit knowledge requirements." Defendant asserts that the word "knowingly" must be added to those conditions to make them constitutional.
In People v. Hall (2017) 2 Cal.5th 494 (Hall), our Supreme Court rejected the claim that a knowledge requirement must be "expressly articulated" in a probation condition. (Id. at p. 500.) Because probation conditions "include an implicit requirement" of knowledge, the court concluded that a probation condition is not rendered unconstitutionally vague by the absence of an express knowledge requirement. (Id. at p. 497.)
In light of Hall, we must conclude that probation condition Nos. 19, 21, 22, 23, and 24 are not rendered unconstitutionally vague by the absence of express knowledge requirements. We need not add the word "knowingly" to those conditions. (See Auto Equity Sales, supra, 57 Cal.2d at p. 455.)
B. We Will Modify Probation Condition No. 21
Probation condition No. 21 states: "The defendant shall not purchase or possess any pornographic or sexually explicit material as defined by the probation officer." Defendant contends that probation condition No. 21 is unconstitutionally vague "because he might not know what the probation officer deemed pornographic or sexually explicit until after he possessed it."
This court has found a nearly-identical probation condition to be unconstitutionally vague. (People v. Pirali (2013) 217 Cal.App.4th 1341, 1344, 1352-1353.) We explained that "the probation condition does not sufficiently provide defendant with advance knowledge of what is required of him. The fact that the probation officer may deem material sexually explicit or pornographic after defendant already possesses the material would produce a situation where defendant could violate his probation without adequate notice." (Id. at p. 1352.) We emphasized: "Materials deemed explicit or pornographic, as defined by the probation officer, is an inherently subjective standard that would not provide defendant with sufficient notice of what items are prohibited." (Id. at p. 1353.)
To prevent unconstitutional vagueness, we must modify probation condition No. 21. The Attorney General concedes that modification is necessary and proposes the following modified version of probation condition No. 21: "The defendant shall not purchase or possess any material he knows or reasonably should know to be pornographic or sexually explicit." We will modify probation condition No. 21 in the manner proposed by the Attorney General.
C. We Will Modify Probation Condition No. 22
Probation condition No. 22 states: "The defendant shall not frequent, be employed by, or engage in any business where pornographic materials are openly exhibited." Defendant contends that the inclusion of the word "frequent" renders the condition unconstitutionally vague, and he asks this court to replace that word with the phrase "visit or remain in." The Attorney General concedes that the word "frequent" is vague and should be replaced with the phrase "visit or remain in."
This Court has previously held that the term "frequent" is unconstitutionally vague. (People v. Leon (2010) 181 Cal.App.4th 943, 952 (Leon); In re H.C. (2009) 175 Cal.App.4th 1067, 1072.) We will modify probation condition No. 22 to replace the word "frequent" with the phrase "visit or remain in." (See Leon, supra, at p. 952 [modifying probation condition to replace the word "frequent" with the words "visit or remain in"].) We will modify probation condition No. 22 to read as follows: "The defendant shall not visit or remain in, be employed by, or engage in any business where pornographic materials are openly exhibited."
DISPOSITION
Probation condition No. 5 is modified to read as follows: "The defendant may not date or form a romantic relationship with any person who has physical custody of a minor unless approved by the probation officer."
Probation condition No. 21 is modified to read as follows: "The defendant shall not purchase or possess any material he knows or reasonably should know to be pornographic or sexually explicit."
Probation condition No. 22 is modified to read as follows: "The defendant shall not visit or remain in, be employed by, or engage in any business where pornographic materials are openly exhibited."
As so modified, the probation order is affirmed.
/s/_________
ELIA, ACTING P.J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
MIHARA, J.